Rather like the schoolmistress of hideous aspect who used to announce in morning assembly that smoking in the lavatories would no longer be tolerated in any circumstances, last Monday the Director of Public Prosecutions Alison Saunders told us in a Guardian op-ed that we had better all take care what we say online. We would, she said, be closely watched for signs of hate speech; anything felt to be offensive could and should be reported; penalties on prosecution would be big. There is little doubt that this exercise was cleared at a high level: the other papers ran the story in real time, and to his discredit the Solicitor-General, Robert Buckland, backed it.
For one thing it’s intrusive and heavy-handed. For intrusiveness, imagine notices in every pub saying that conversations will be monitored and action taken against those who stray over the limit: Ms Saunders’s attitude to life online seems to be much the same. Heavy-handed prosecutions are not hard to find either, even under the existing regime. Calling Lord Sugar online an ‘old Jewish ****’, or tweeting to an Asian Scottish politician ‘Your [sic] a P**I’ are both in pretty bad taste, but does she really want to burden the criminal justice system further with childish name-calling of this kind? Unfortunately, her suggestion that she wants to throw the criminal book at someone who casually remarks ‘When are you going to stop bombing people?’ suggests an enthusiastic Yes to this use of a juridical sledgehammer to crack a nut.
For another, what she insists on amounts to a grievous misallocation of resources and an astonishingly irresponsible waste of police time. Every piece of impolite or irreverent tittle-tattle reported as hate speech at her behest and then not prosecuted means fewer resources for investigating matters crying for attention: attacks on teenage girls in Newcastle, for example, or FGM (where her record is, to say the least, not stunning), or mindless vandalism (something that makes life a misery for many, including the poor and minorities, who don’t live in the middle-class havens inhabited by senior law officers). At least now when you’re told that the police don’t have the manpower to investigate the yahoos who just kicked your door down for fun, for the second time, you might be able to guess why, but that’s not much consolation.
For another, the redoubtable Ms Saunders’s earnest claim that abuse needs to be suppressed ‘whether shouted in their face on the street, daubed on a wall or tweeted into their living room’ doesn’t hold water. You can’t keep yobs from yelling at you or vandals from tagging your walls. But nobody has to subscribe to Twitter, and if they do they can bar certain accounts or words; if they continue to be devastated by what they read, it is at least partly the result of their own actions.
But perhaps most important is the element of deception involved. It needs to be shouted from the rooftops that the Crown Prosecution Service’s usefully all-enveloping and oft-repeated definition of hate crime as ‘any criminal offence which is perceived by the victim or any other person, to be motivated by a hostility or prejudice’ is just that: their definition. It is a position adopted unilaterally by the CPS and, significantly, by the police. It has no basis in the actual law, where it is certainly not enough to show that someone, somewhere, thought there might be hostility or prejudice; if the matter comes to court the motivation has to be proved from the circumstances.
Why are the CPS and others happy to perpetuate this remarkable economy with the truth? One suspects the reason is pragmatic: it is very convenient for themselves, and also for overworked or indolent police commanders. Imagine someone complains of an internet post, and – perhaps because she comes from some organised minority – she or her friends seem able to make trouble. Imagine also that the poster for his part says, perhaps with reason, that what he said was perfectly fair comment and he doesn’t see why it’s objectionable to say it in a free country. Think of the time and trouble saved if the police can knock on his door and say: ‘We’re not here to talk about the rights and wrongs of it; she thinks your post shows prejudice, and that’s hate speech. Unless you take it down now we’ll arrest you, search your house and seize all your computers. The CPS agrees with us; now please do as we ask.’ (If you don’t believe this scenario, it is perfectly plausible: see here, where almost exactly that happened to a fringe Tory website accused of anti-Islamism, which for once chose to argue.)
Of course this process grossly discounts such values as freedom of speech, which TCW readers unaccountably regard as being rather important, together with anyone else who dislikes allowing people to be silenced by bullies using the forces of the state. But (says Alison Saunders, followed by the craven establishment) it avoids conflict; and if it does this who cares, even if we do end up regarding the police and the authorities as being like a teacher trying to break up a playground scuffle between five-year-olds, saying they mustn’t fight and it doesn’t matter who took whose ball? Come to think of it, didn’t we say at the beginning that the DPP sounded rather like a schoolmistress all along? Perhaps she has missed her true vocation.